Contracts and Law - Part 16: Step by Step Into Self-Employment on the Net
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| Photo by Cytonn Photography on Unsplash |
It's about the subject of law in general and things like offers, contracts, terms and conditions, internet law in particular.
Of course, I cannot cover all of these topics comprehensively in one article and explain every special case.
But I would like to use an overview and my own experiences and examples to raise awareness of how important the topic is.
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[overview of the article series " Step by step into self-employment on the Internet "]
( Note: I am not a lawyer and the following statements are my personal experiences and opinions. If you have specific questions or problems, you should contact a lawyer *.)
Law for the Self-Employed
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| Part 16: Step by Step Into Self-Employment on the Net |
Even if many complain about the excessive bureaucracy and the jungle of laws, many start-ups neglect the topic. It is sometimes frightening how little some founders deal with it and go into self-employment with naive eyes.
From my personal experience, I can say that I dealt with the topic when I founded the company, but that the effort involved was limited.
Nevertheless, in the years of my self-employment, I have had some experience with contracts, law, and the like. I would like to incorporate these experiences in the following to show that it is important to deal with the topic.
Because if you neglect the topic, it can not only be expensive, it can even threaten your existence.
Terms and Conditions
First of all, I would like to address the general terms and conditions.
Again and again, I am asked whether something like this is necessary. The simple answer to that is "no".
There is no obligation to use general terms and conditions. Neither online shops nor service providers have to use terms and conditions. However, it is usually still worth it.
Because if you don't use general terms and conditions, the BGB applies to transactions with end consumers and the HGB with other companies. The BGB in particular is designed to be very consumer-friendly (which is not a bad thing in itself). Online shop operators will be able to confirm this, for example.
General terms and conditions are therefore used to fix fundamental and recurring clauses and conditions. Everything that should apply to every customer belongs there. And of course, the company tries to anchor regulations that are as advantageous as possible in its terms and conditions.
But you can't go too far either. There are always court decisions about ineffective terms and conditions. Companies try to stretch the terms too far in your favor.
I have terms and conditions for my work as a web developer. At the time, I took these from the book Law for Graphic Artists and Web Designers * and adapted them. I also had this checked again by a lawyer. It was worth the money to me, as it was the contractual basis for the years to come.
It is possible to obtain a general terms and conditions template online, but you should be careful. On the one hand, everything does not have to be correct and on the other hand, a 1: 1 copy of, for example, terms and conditions would be questionable in terms of copyright.
Since the terms and conditions will be the basis of all business for many years, I recommend having your lawyer check them again *.
Among other things, it is also important to make these terms and conditions visible to potential customers before they sign. So you can't conjure this out of the drawer afterward.
Deals
Offers are one of those things too.
According to German law, a declaration of intent on both sides is sufficient for a contract. On the part of the provider, an offer is sufficient as such a declaration of intent.
So you should be careful about what offers you make online or offline to others.
From my own experience, I can say that you should always define exactly which services you are offering for which amounts of money.
A long time ago I made an offer for a small online shop and defined a fixed price for it. Unfortunately, I did not make a clear definition of the number of products for the item “Enter the customer's product”.
And unfortunately, it was an entrepreneur who liked to take advantage of others and immediately took advantage of this weak point in my offer. Of course, I spent a lot more time updating thousands of products than I planned. That was an important lesson for me.
If there are open points in an offer, they should be "lashed down" in the order confirmation, for example.
Conclusion: Offers are the most important legal element and should be formulated as clearly as possible. In other industries, the offers are not thick for nothing.
Contracts
If a customer accepts an offer, a contract is created. According to German law, verbal declarations of intent on both sides are sufficient to create a valid contract.
If there are differences of opinion later, however, you have nothing in writing and that is usually a disadvantage.
It is therefore very advisable to put contracts in writing. (For some types of contract, there is also an obligation to provide it in writing.)
Even with contracts, you don't have to reinvent the wheel. There are templates for many common cases. In the book linked above, for example, there are many templates for all kinds of contracts that a web designer can conclude with customers. Among other things, for a work contract for the creation of a website, for design services, for hosting *, etc.
A good selection of sample contracts can also be found, for example, on haerting.de (the website of the law firm “HÄRTING Rechtsanwälte”). There you will find, among other things, web design contracts, provider contracts, content contracts, and more.
Otherwise, it is of course worth researching with the competition and having contract templates sent to you anonymously. The IHK or associations can also help. And of course, you can also consult a lawyer here. The latter is particularly worthwhile for contracts for unusual and not-so-typical services/products.
And when, how, what, and who should be clearly and unambiguously regulated in contracts. That is why many contracts are very extensive. This is usually not meant in evil or deceitful way, but it is precisely what companies use to protect themselves from those people who first look for holes and want to exploit them.
Before I create a new website for a customer, I send them my standard contract including terms and conditions in duplicate. The contract then also states that the offer becomes part of the contract. The customer must then sign and postmark one copy of the contract and one copy of the terms and conditions.
But there are also things that I don't do as laboriously. So recently I had a reader question whether I would also draw up a contract for each of the banner advertisers in my blog. No, I don't do that. Here an offer is usually made by email, which is then also accepted or rejected by the potential advertising customer by email.
If it was accepted, I send an invoice to the advertising customer in which I refer to the offer and his acceptance of the same and there the important key points (who, when, what, where) are briefly listed again. In my experience, that is sufficient with such a simple and clear performance. The fact that I insist on prepayment reduces the risk that I will have to run after my money afterward. :-)
Of course, it looks different again with sales contracts or rental contracts. Of course, a real contract is recommended.
Right on the Internet
Let's come to an area that is particularly interesting for self-employed people on the Internet. And I have already “been allowed” to gain some experience here.
The internet has long ceased to be a legal vacuum. On the contrary, it is now sometimes very difficult for a sole proprietor to keep track of things. That is one reason why I withdrew from the online shop business a long time ago. The legislation and the constantly changing court rulings have to be dealt with full-time.
But there are also some legal pitfalls for “normal” websites.
A big problem lies in the fact that legal violations are much easier to research on the Internet. For example, as a regional entrepreneur, if you use a picture in a flyer that violates copyright law, you can usually get away with it because the author usually never sees the flyer. (Of course, this is not an invitation to do something like that !!)
However, if you use this image on your company website, it is of course available nationwide and there are now even search engines with which you can search for specific images on the web. So here you sit much more heavily on the presentation plate.
So I was just “allowed” to get acquainted with copyright law, and it was an expensive proposition. Always be careful not to use any content (images, videos, texts) on the Internet for which you do not have permission from the rights holder.
While this is still relatively easy to implement on a company website, it can be more difficult with other types of websites. For example blogs “live” from the fact that you introduce others, link them, and, for example, also include an example image when they link to an external gallery. I will go into more detail on this in a separate article.
However, other legal landmines are lurking on websites. There are precise rules for advertising and how it must be labeled. Likewise, many neglect data protection and information obligations (imprint and Co.).
On existenzgruender.de it gives a good overview of possible Abmahngründe.
You can also get problems with trademark law. I will write something about that again soon.
As a first conclusion, one can say that it is possible to secure yourself relatively well legally, even on a website. It is of course work and you have to pay attention to a few things, but the most important points are known and you can also find a lot of tips on the Internet.
However, there will probably never be 100% security. In addition, there is problematic discretionary leeway in many laws, so that there can be a warning for something that you consider to be in order.
Legal Advice?
Lawyers are expensive, let's not kid ourselves. Most self-employed people dream of such an hourly rate. Nevertheless, it can be useful to seek legal advice.
On the one hand, as already described above, with basic things such as the terms and conditions or contract templates. Here the costs are usually worthwhile in the long term.
On the other hand, of course, if you have legal problems, such as a warning. I recently received my first copyright notice for a picture on my blog and then turned to a lawyer. Financially I didn't save a lot, but overall it was still good to seek professional help.
It can easily happen that you sign something prematurely, which can cause you even more trouble later.
If you want to warn someone else because they violate copyright law, for example, then it is of course inevitable to see a lawyer.
Conclusion
Hopefully, this article has made the reader a little more sensitive to the topic.
I don't want to stir up excessive "fear". In more than 5 years of being self-employed on the Internet, I have now received a warning and have not had any other legal problems.
Nevertheless, one should not neglect this topic.
The legal problem areas presented in this article are of course not even close. Depending on the industry, there can be many special legal regulations. That is why you should inform yourself regularly before setting up your own business and of course during your self-employment.
Associations, chambers, and the IHK are good places to go. There is a good introduction to the law for business start-ups on the website of the Stuttgart Chamber of Commerce and Industry.
So It Goes on
In the next part, I'll show you why self-employed people fail and how you can prevent that.
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