What are the pitfalls of modification clauses for tech businesses in Poland?

Modification clauses have long been a practical issue in the construction of standard contracts addressed to consumers. The Polish Office of Competition and Consumer Protection (OCCP) is regarded as one of the strictest authorities in Europe in this regard. Recently, OCCP has been looking at how consumers are informed about any changes regarding the introduced goods or services.

Only in indefinite-term contracts

The modification clause can be used only in case of contractual relationships of a continuous nature as they can be terminated by either party without additional financial consequences for the consumer. In case of contracts concluded for a definite time, the parties agree on strictly defined conditions: the consumer, in exchange for a lower subscription price or other profits, undertakes to use the services of the entrepreneur for a specified period. Therefore, according to the OCCP, entrepreneurs should not freely change the terms of the contracts concluded for a definite period, which, after all, binds both parties equally.

Modification clause must-haves

What are the requirements for an effective modification clause? Firstly, it should be properly constructed from the beginning; that is, the specific circumstances that may be the basis for amending the contract must be indicated in the terms and conditions. Moreover, these circumstances should objectively justify the potential change; for example, a clause that would only use the term "important reasons" without specifying them would not have an effect.

Secondly, in case of modification, the consumer should be informed about the new content of the terms by delivering them, even when their use in a given type of relationship is customary and it is easy to find out about their content. It is not sufficient to inform the consumer only about the mere fact of changing the terms, but he should obtain at least the content of the provisions to be changed.

Thirdly, after obtaining a notice, the consumer should be able to terminate the contract with the next notice period. If he fails to do so, the amended version of the contract shall apply from the date of expiry of the notice period. The consumer shall not bear any negative consequences for the termination in this case.

Explicit consent required

The president of OCCP has recently pressed charges against one of Poland's largest telecom providers of broadband internet, digital television, telephony and mobile services. Its customers had been charged with a fee for additional TV channels and a higher internet speed despite the fact that they had not ordered those services. These were new products for them and the entrepreneur did not obtain consent or an explicit declaration of the will of customers regarding their launch and charging some additional fees.

The situation was not changed by the fact that the company enabled its customers to opt out of new services within six months free of any charge. The entrepreneur should not unilaterally change the scope of the services rendered to launch new ones and then require consumers to pay a higher subscription fee for products not ordered or opt out of the new terms and conditions. All those options lead to transferring the burden of a failure to express consent to the new, unsolicited services onto consumers what is legally prohibited.

Osborne Clarke's comment

There are many subtleties as regards the modification clause. The OCCP has verified, for example, whether the layout and font size suggest a different amount of fees than in reality. These practices may be considered a practice that infringes collective consumer interests. If a breach of collective consumer interests is established, then the president of OCCP may impose a penalty of up to 10% of turnover per company and up to PLN 2 million per manager.