Why choose a lawyer to write your CVG and CGU?

The correct drafting of your general conditions of sale or use is necessary to protect your business at the legal level.

Lawyer in drafting general terms and conditions of sale (CGV) in Paris

While the General Terms of Use (CGU) will govern the terms of use of a website or a mobile application (whatever they are), the General Terms and Conditions of Sale (CGV) will determine the commercial relationship that exists between a professional and the customer of a merchant site (e-commerce site).

In addition to these problems, there is the need to protect the CGU and the CGV developed by the hosts of a site or by the creators of a mobile application.

In other words, the role of the CGU is to determine what is authorized to do on the website, the responsibility of the various actors who interact with the website or the sanctions in case of non-compliance with the rules.

As for the terms and conditions, they are essential and mandatory elements of any French e-commerce site. They make it possible to be in line with the legislation and reinforce credibility with visitors or future customers by preventing all kinds of conflicts.

The General Terms and Conditions of Sale (GTC) as a document containing all the information relating to the legal conditions of sale of goods or services

The firm is responsible for drafting your General Terms and Conditions of Sale (GTC), which are a set of written clauses that aim to frame your contractual relationships with your customers, professionals or individuals, to whom you provide goods or services.

Article L.441-1 of the Commercial Code relating to the General Conditions of Sale is organized into four distinct parts, namely:

The content of the GTC, including the terms of payment as well as the elements for determining the price, including the schedule of unit prices and any price reductions. When the price of a service cannot be determined a prima facie, the service provider is required to communicate the method of calculating the price or a quotation. Indeed, the drafting of the GTC must be done sufficiently Claire and specifies.

In a decision of the Tribunal de Grande Instance de Troyes dated June 4, 2008, Sté Hermès International v/Sté eBay France, the court will observe that despite the means already implemented (general conditions of use, which draws the attention of users to the risks of fraud), the implementation of a program that makes it possible to report the presence of illicit objects, the implementation of a program that makes it possible to report the presence of illicit objects, the frequently asked questions devoted in particular to counterfeiting, the technical means used to prevent advertisements. who use keywords such as “copy, fake, or replica”) by eBay companies, this was clearly not enough to effectively warn users of the risks they run in selling/buying counterfeit items, to attest to the authenticity of the items they are offering for sale, when this is false, and to ensure that intellectual property rights holders maintain their interests.

THEobligation to communicate the GTC to any buyer who requests it. The general conditions of sale can be differentiated according to the categories of purchasers of products or services. A judgment of the European Court of Justice (CJEU) on 5 July 2012 recalls the obligation of the seller to communicate the CGV (general conditions of sale) in writing or by a “durable medium” in accordance with the requirements of article 5 of the European directive of 5 May 1997.

The Role of the CGV, which, as in the past, must constitute” the unique basis of commercial negotiation ”;

La penalty for failure to communicate the CGV. It is now an administrative (and no longer civil) fine which can therefore be imposed by the DGCCRF. It cannot exceed €15,000 for a natural person and €75,000 for a legal person.

Thus, to be in compliance with the law and protect you in the context of your commercial relationships, have personalized General Terms and Conditions of Sale adapted to your activity with FELLOUS AVOCATS.

What are the main advantages of having CGV?

The General Terms and Conditions of Sale are mandatory between professionals, highly recommended for consumers, they allow you to be in compliance with the law, but also to prevent customer disputes And of you avoid any disputes with your suppliers/customers.

They are an effective tool for reminding invoices and managing your customer accounts in setting payment deadlines, and by providing for sanctions in case of delay. Multiple unpaid bills can then be avoided.

The terms and conditions allow to inform your customers, prior to any transaction, on your conditions of sale and payment. Since the Hamon law of March 2014, the obligation to provide information has been strengthened, whether between professionals or between professionals and consumers. Commercial relationships are then protected.

The General Terms of Use (CGU) as a set of rules for using a website or an application

Intended for customers or simple visitors, they are not mandatory, but allow users of the site to be informed about their obligations and about the responsibility of the site publisher. The famous European regulation on the protection of personal data, known as the RGPD, of April 27, 2016 (Rule. (EU) 2016/679 of 27 April 2016) has had a major impact on the content of the general conditions of use by imposing general information relating to the collection and processing of personal data of users of the site.

In this sense, FELLOUS AVOCATS is involved in the drafting of your terms and conditions.

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What is the role of the general conditions of use (CGU)?

As a preliminary point, it should be noted that in addition to the general conditions of use, each website must also have a page containing The legal notices of this one. This page containing mandatory information is the subject of a separate note specifically devoted to legal information. Where they exist, the T&Cs will generally themselves include general conditions of sale, legal notice, privacy and cookie policy.

Regarding the general conditions of use, they are certainly not mandatory, but they are intended to be used on all websites, including non-commercial ones.

The general conditions of use have a contractual value in that they govern the relationship between the publisher of the site and the user who visits it. Thus, they must provide for the applicable rules concerning the responsibility of each individual. Likewise, the general conditions of use make it possible to communicate transparently about the personal information used in order to guarantee users the protection of their personal data and therefore their privacy.

In short, the objective of the general conditions of use is to govern the terms, rights and limits of use of the website; to establish rules relating to the protection of the intellectual property rights of the publisher of the site; and to inform about the collection of personal data provided by the user.

With regard to the user's consent to the CGU, as soon as the user has been able to know the CGU indisputably (banner, window that opens as soon as he enters the site, etc.) and has continued browsing the site, he expresses his desire to accept them. However, as soon as the CGU contain mentions relating to the protection of personal data (which is almost always the case now), the RGPD provides that consent must result from a positive act. Thus, in this case, simple navigation on the site will not suffice and it will be necessary to obtain the express consent of the user, in particular by means of a check box indicating acceptance of the site's Terms of Use.

Thus, for the CGU to be enforceable against the user, they must certainly be accepted, but also that they be legible and intelligible: if this is the case, a contract will be formed between the user and the publisher.

In a judgment of 31 October 2012 concerning the case M6 against TV-Replay, the Court of Cassation indeed considers that for the CGU to be enforceable,”the simple posting of these online, accessible by a half-hidden tab in the lower part of the screen, is not sufficient to impose a contractual obligation on the users of the services offered“. The judges note that” access to the home page of the m6 replay and w9 replay sites, to the menus and to the programs to be reviewed was free and direct and did not require prior knowledge or acceptance of the general conditions of use ”. Therefore, and in the absence of a very clear visibility of the T&Cs, it is impossible for the publisher of the website to rely on the conditions set out in a contract that he did not have a user read. The Court of Cassation will therefore impose that the general conditions of use must be formally accepted by users, to be opposable to them.

What is the content of the general conditions of use (CGU)?

When written, the CGU must indicate certain mandatory information that mainly corresponds to legal information.

For an individual who publishes a non-commercial site, he must mention: the name, first name, address and telephone number of the host. He must also either indicate the same information concerning him, or send them to the host.

In the case of a professional, the individual entrepreneur or a professional natural person must indicate his name, first name and address, the company must indicate his company name, legal form, the address of the head office and the amount of its share capital.

In all cases, the professional must indicate: his registration number in the Trade and Companies Register (RCS) or in the Trade Register (RM) if he is a craftsman; his tax identification number (intra-community VAT number); the general conditions of sale (CGV) if it is a merchant site (price, date and delivery costs, payment terms, right of withdrawal, etc.).

If it is a regulated profession, it will also be necessary to indicate the applicable professional rules and the name and address of the authority that issued the license to practice.