If you run an online store and want to operate legally online, you are obliged to have online store regulation. What if you have regulation already, but you want to change it? Do you have that option? How to change the regulation in accordance with the law? This question will be answered in today's article by attorney-at-law Anna Zakrzewska, co-author of the blog legalniewbizneise.pl.

By having the online store regulation, sooner or later you will encounter the need to change it. Changing the regulation in the online store may be caused by a change in legal provisions, but it may also result directly from the entrepreneur's will, as well as may be caused by changing market conditions.

Due to the fact that the regulation must be made available to the consumer before the conclusion of the contract so that he can become familiar with all its provisions, it is in the interest of the seller that the regulation should be up-to-date. The consumer cannot be bound by a new record in the regulation if he has not been made available to him in due time.

When can we change the regulation?

First of all, the regulation can only be changed if the clause on the possibility of changing the regulation has been included in it. According to art. 385 [3] of the Civil Code, in case of doubt, it is considered that prohibited contractual provisions are those that in particular entitle the consumer's contractor to unilaterally change the contract without a valid reason indicated in this contract. Secondly, the change of the regulation is only possible in a way that allows customers to get acquainted with it and consent or opt-out of using the services. Also, the regulation should indicate important, i.e. objectively significant, reasons for its changes.

When do we need to change the regulation?

The entrepreneur is obliged to adjust the regulation in accordance with the changing law. Any change in the legal provisions regulating the sale of products or the provision of services by electronic means by the seller affecting the mutual rights and obligations set out in the contract between the customer and the seller or change in the interpretation of the above provisions as a result of court decisions, decisions, recommendations or recommendations appropriate to the given area of offices or bodies makes it necessary to change the regulation.

The change of data identifying the entrepreneur, in particular data about the company, address, registered office, and, consequently, also the change of the body that registered the business, as well as the number under which it was registered makes it necessary to change the regulation. Besides, data enabling contact with the entrepreneur. Similarly, an entrepreneur who has changed the legal entity type is also obliged to change the regulation in this respect.

What is more, the regulation should be updated when there are significant changes in the scope of the entrepreneur's activity, that is if its profile changes, new services are introduced or the scope of its operations is extended.

Any change in the scope or provision of services to which the records of the regulation apply, through the introduction of new, modification or withdrawal by the seller of the existing functionalities or services covered by the regulation raises the need to change the regulation. In other words, if the conditions for concluding and terminating contracts are changed, or the complaint procedure mode, it is necessary to change the regulation.
Any technical or technological changes related to the functioning of the store, for example, a change of the web browser, which should be used to read the regulation, or change of technical requirements necessary to cooperate with the ICT system used by the entrepreneur should be included in the regulation.

How to avoid prohibited clauses?

The register of prohibited clauses is available on the website of the Office of Competition and Consumer Protection (UOKIK) at https://rejestr.uokik.gov.pl. At present, the President of the Office may, in the decision, consider the clause to be prohibited and prohibit its use in contracts with consumers. Such a provision is not binding in relation to the entrepreneur who used it and all consumers who have concluded a contract with him. The set of forbidden contract clauses regarding the change of regulation is quite extensive. Among the most commonly used forbidden contractual clauses used by entrepreneurs are the following records:

"The store reserves the right to change the Regulation."

"The store owner reserves the right to change the content of the Regulation without the need to notify users."

"The Seller reserves the right to change this Regulation. The amended provisions of the Regulation will be binding from the moment of its publication on the store's website."

"The store owner reserves the right to unilaterally amend the provisions of this Regulation at any time and without justification."

"The store reserves the right to change the content of this Regulation at any time."

"The Seller reserves the right to change the contents of this Regulation without prior notice."

"The company reserves the right to change the store's Regulation unilaterally at any time and without giving a reason, informing customers about it by placing a relevant message in the Store."

"The owner reserves the right to change the Regulation without giving any reason and without prior notice."

"The Seller reserves the right to change the Regulation at any time. The changed Regulation will be available on the store’s Website for everyone using the Online Store."

"The disputes that may arise in connection with the performance of the contract shall be resolved by the common court having jurisdiction over the defendant's registered office."

"Every change to the Regulation comes into force from the date of the release of the consolidated text on the website."

"The store reserves the right to change the regulation without prior notifying users registered on the website of that fact. All changes are effective from the date they are published on the website."

"Regulation comes into force on the day of its publication on the website, unless the provisions of this Regulation provide otherwise."

"The change to the Regulation does not constitute a change to the terms of the contract."

"Company X reserves the right to transfer or to commission all or part of its rights and obligations arising from this Regulation. In this case, the information about the transfer or order along with information about the entity to which the transfer was made will be provided at the time of logging in to the Website."

The examples given above are only a part of prohibited contractual clauses in the course of trade. If there are such records in the rules of the online store, the entrepreneur is exposed, among others, on financial responsibility imposed by UOKiK. That is why it is worth to act legally in business and monitor its online store regulation on an ongoing basis.

What to pay special attention to when updating the online store regulation?

The entrepreneur has the right to change the regulation of the online store. However, the circumstances of this change must be precisely defined by him. First of all, it must clearly show that they do not apply to customers who have already entered into a contract. The change in the regulation may not create a sense of instability and uncertainty connecting the parties to the legal relationship. When making changes to the regulation, the reasons for modifying the regulation should be comprehensively and clearly defined.

The consumer should be informed about the planned change of the regulation by, for example, sending information by e-mail, enclosing the draft of the new regulation. The consumer must have time to become familiar with the changes and possible reaction, i.e. the possibility of accepting or not accepting changes in an unmistakable way.

The consumer should have access to the current regulation and archived regulation, in a manner that allows him/her to obtain, reproduce and record its contents at any time.

What provisions regarding changing the regulation should be included in the regulation of the online store?

A change to the Regulation is only possible in a way that allows customers to get acquainted with and consent, or to opt-out of further use of services. Information about the change to the regulation should be made available no later than 14 days before the introduction of the changed regulation. Ideally, the message sent to the e-mail address provided when concluding the contract for the provision of services by the customer is considered by the parties to introduce information about the change to the means of electronic communication in such a way that the customer can become familiar with its content. If the seller does not have an e-mail address of the consumer, the entrepreneur may inform the customer about the change in the Regulation as part of the notification in the application.

It is worth pointing out in the regulation that the change of regulation takes effect only 14 days after the date of sending information about the change. In the case of clients with an account, they will have the right to terminate the contract for the provision of services within 14 days from the date of notification of their change of regulation. It is worth noting that the change of the regulation is irrelevant to the sales contracts concluded by the customer and seller before the change of the regulation.

What is important, it does not require changing the regulation to introduce promotions, competitions, and additional services by the online store, the detailed rules, and conditions of which are set out in separate regulation.

The basis of operation in the e-commerce industry is the use of online store regulation as a contractual template applicable to the client. When undertaking detailed steps regarding the change, you should first think about them and adapt them to specific regulation and a specific store. Every change to the online store regulation requires double vigilance, so be careful and prudent.