GTC of Use and GTC of Sale: differences, articulation and mistakes to avoid to secure your digital business

For any director of a digital company, e-merchant, platform publisher or online service provider, the General Terms of Use (GTU) and the General Terms and Conditions of Sale (GTC) constitute the daily contractual foundation of the business. Yet these two documents are frequently confused, a confusion sometimes fostered by how easily one can find templates on the internet, and this confusion is costly.

A SaaS platform that publishes GTC but forgets its GTU exposes itself to disputes over the use of the service. An e-commerce site that simply copies and pastes general terms found on a competitor's website risks the total unenforceability of its clauses, or even penalties from the DGCCRF. A mobile app publisher that mixes its GTU and its privacy policy exposes itself both to a GDPR risk and to a risk of clauses being deemed unfair.

This article breaks down the fundamental legal differences between GTU and GTC, explains their correct articulation with the other contractual documents and identifies the most frequent legal mistakes that expose VSEs/SMEs to litigation or penalties.

GTU and GTC: what exactly are we talking about?

What are the General Terms of Use (GTU)?

The GTU govern the use of an online service: a website, a platform, a mobile application, a user area, a SaaS. They define the rights and obligations of the service publisher and the user, independently of any commercial transaction.

In concrete terms, the GTU address the following topics:

• The conditions of access to the service and account creation
• The authorized and prohibited behaviors of the user (moderation, illegal content)
• The intellectual property over the content of the service and over the content the user publishes
• The liability rules in the event of malfunction
• The conditions for suspending and closing an account
• The applicable law and the procedures for settling disputes

No text makes the GTU mandatory as such. But as soon as a site offers an interactive feature (user account, forum, content publishing, message exchange), the absence of GTU exposes the publisher to major risks: inability to ban an abusive user, challenges to moderation rules, exposure to editorial liability.

What are the General Terms and Conditions of Sale (GTC)?

The GTC govern the commercial relationship, that is, the sale of goods or the provision of services for remuneration. They govern what happens between the order and the performance of the contract.

Article L441-1 of the Commercial Code specifically provides that the general terms and conditions of sale include, in particular, the payment terms as well as the elements for determining the price, such as the schedule of unit prices and any price reductions. The same article adds that the GTC constitute the sole basis of commercial negotiation in relationships between professionals.

A well-drafted GTC therefore addresses:

• The price and payment terms (discount, late payment penalties, fixed indemnity)
• The delivery or performance terms of the service
• The transfer of ownership and risks
• The legal and commercial warranties
• The right of withdrawal when the customer is a consumer
• The return and refund conditions
• The liability of the seller or service provider

Unlike the GTU, the GTC are made mandatory by law in several cases, notably in the B2B relationship at the request of the professional buyer (Article L441-1 II of the Commercial Code) and in the B2C relationship as soon as there is a general obligation of pre-contractual information (Article L111-1 of the Consumer Code).

Why does confusing GTU and GTC expose the company to risks?

The confusion often arises because the two documents are found on the same website. However, their legal object is radically different: one governs a use, the other a transaction.

A director who operates a platform offering both a free service (GTU required) and paid purchases (GTC mandatory) must publish two separate documents. Merging them into a single hybrid document creates several problems: confusion over consumer rights, poor placement of mandatory pre-contractual information clauses, risk of clauses being deemed unfair because they are illegible or contradictory.

Concrete example: a marketplace offering a free seller account must have GTU governing the use of the account, and GTC governing the orders placed. If everything is mixed together, a consumer buyer may invoke a failure to provide pre-contractual information to obtain the cancellation of their order or the nullity of certain clauses.

Summary comparison

GTU vs GTC

Comparison criteria

What is the actual legal value of GTU and GTC?

When are general terms enforceable against the customer?

Article 1119 of the Civil Code lays down a simple but formidable rule: the general terms invoked by one party have effect with regard to the other only if they have been brought to that party's attention and if that party has accepted them.

This dual requirement of information and acceptance is the cornerstone of enforceability. In practice, it entails several things for a website:

• The GTU and GTC must be permanently accessible, generally via a link in the footer
• When placing an order or creating an account, the user must actively tick a box confirming that they have read and accepted the terms
• The link must work and lead to the complete document
• The terms must be drafted in French (or in the consumer's language in certain situations)
• Any modification must be notified to the user, and their acceptance collected

A simple statement "by placing an order, you accept our GTC" without a dedicated checkbox is generally deemed insufficient by the courts, especially in relationships with a consumer.

What does Article L441-1 of the Commercial Code provide for B2B GTC?

In the relationship between professionals, Article L441-1 II of the Commercial Code requires any person carrying out production, distribution or service activities who establishes general terms and conditions of sale to communicate them to any buyer who requests them for a professional activity. This communication must be made by any means constituting a durable medium.

The GTC may be differentiated according to categories of buyers (wholesalers, retailers, purchasing groups). In this case, the communication obligation only covers the GTC applicable to the relevant category.

Failure to comply with this communication obligation is punishable by an administrative fine the amount of which may not exceed €15,000 for a natural person and €75,000 for a legal entity. The DGCCRF has authority to monitor this obligation and impose the penalty.

Article L441-1 III adds a rule that is often overlooked: once the GTC are established, they constitute the sole basis of commercial negotiation. This means that the seller cannot refuse to negotiate on the basis of its own GTC, and that any particular condition of sale must be discussed in relation to them.

What information is mandatory when selling to a consumer?

When the customer is a consumer, Article L111-1 of the Consumer Code requires the professional to communicate, before the conclusion of the contract, in a legible and comprehensible manner, a series of pre-contractual information items:

• The essential characteristics of the good, service or digital content
• The price or any other advantage provided instead of or in addition to payment
• In the absence of immediate performance, the date or deadline for delivery or performance
• The identity of the professional and their postal, telephone and electronic contact details
• The existence and terms of the legal warranties (legal warranty of conformity, warranty against hidden defects) and any commercial warranties
• The possibility of resorting to a consumer mediator

In the particular case of contracts concluded at a distance (online sales), Article L221-5 of the Consumer Code adds further mandatory information, including the conditions, deadlines and procedures for exercising the right of withdrawal, the standard withdrawal form, the costs of returning the goods and information on any personalized prices based on automated decision-making.

For e-commerce site publishers, Article 19 of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy (LCEN) also requires the display of certain professional identification details: name, address, RCS, share capital, intra-Community VAT number, contact, host.

How to articulate GTU, GTC and other contractual documents?

Should there be a single document or several separate documents?

The best-practice rule is to separate the documents by function:

• GTU for the use of the service
• GTC for transactions
• Privacy policy for the processing of personal data (GDPR)
• Cookie policy for trackers
• Separate legal notices (Article 19 LCEN)

This separation has several advantages: increased readability, easier compliance to demonstrate in the event of a CNIL or DGCCRF inspection, simpler modifications (a change to the cookie policy does not require revalidating all the GTC).

Conversely, some VSEs choose a single document for the sake of simplicity. This choice is not illegal in itself, but it multiplies the risks: if a clause is deemed unfair or void, it can lead, by a cascade effect, to the nullity of other clauses; a failure to provide information on the right of withdrawal can cause the entire order to be cancelled.

What to do in the event of a contradiction between GTU, GTC and particular conditions?

Article 1119 of the Civil Code lays down the applicable hierarchy rules:

• In the event of a discrepancy between general terms invoked by both parties (for example, the seller's GTC and the buyer's GPC, general purchase conditions), the incompatible clauses are without effect
• In the event of a discrepancy between general terms and particular conditions, the particular conditions prevail

In concrete terms, if a customer signs a purchase order containing particular conditions contrary to the GTC, it is the particular conditions that apply on the relevant points. The GTC remain applicable for everything they govern without contradiction with the purchase order.

An order-of-priority clause is therefore strongly recommended in all contractual documents: it expressly specifies which document prevails in the event of a contradiction. This precaution avoids many disputes in the event of disagreement over interpretation.

How to integrate the privacy policy and the GDPR notice?

Since the entry into application of the General Data Protection Regulation (GDPR) on 25 May 2018, any company that collects personal data, for example when creating an account or placing an order, must inform the data subject of the use that will be made of this data.

This information must not be buried in the GTC. On the contrary, the CNIL recommends:

• A separate document entitled "Privacy policy" or "GDPR notice"
• A two-level information: a short summary at the time of collection, and the full detail in a separate document
• A specific mention of the rights of data subjects (access, rectification, erasure, portability, objection)
• The contact details of the DPO when there is one, or otherwise of the data controller

When the GDPR is dealt with separately, the GTU can simply refer to the privacy policy via a hyperlink. This articulation is legally safer and clearer for the user.

What are the most frequent mistakes to avoid?

Why is copying a competitor's GTU/GTC dangerous?

Copying and pasting another site's general terms is the most widespread mistake among VSEs and start-ups. This practice combines several major risks:

• Infringement: GTU and GTC are works protected by copyright when they have an original character. Reproducing them without authorization exposes one to an infringement action (Articles L111-1 and L335-2 of the Intellectual Property Code)
• Unsuitability for the actual business: a B2B SaaS site and a B2C e-commerce site have absolutely different obligations. Copying the GTC of a merchant site onto a SaaS platform results in an ineffective document
• Clauses unsuited to the French legal framework: many templates found online are translations of Anglo-Saxon documents that are inapplicable under French law
• Reproduction of clauses deemed unfair: copying a document that contains non-compliant clauses means exposing oneself to the same penalties as the party from whom it was copied

Drafting GTU and GTC is a bespoke legal exercise that requires analyzing the business model, the target audience, the applicable sector obligations, and any GDPR specificities.

Which clauses are systematically considered unfair?

In the B2C relationship, Article L212-1 of the Consumer Code prohibits clauses whose object or effect is to create, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract.

Several categories of clauses are deemed irrebuttably unfair by the decree of the Conseil d'État (Article R212-1 of the Consumer Code), notably those whose object or effect is to:

• Reserve to the professional the right to unilaterally modify the contract without valid reason
• Impose on the consumer the burden of proof of a breach by the professional
• Eliminate or limit the consumer's recourse to legal action
• Inappropriately limit the legal warranty obligations

Other clauses are presumed unfair (Article R212-2), and it is then up to the professional to prove their balanced nature. This is notably the case for clauses that limit the professional's liability in the event of non-performance.

In the B2B relationship, Article L442-1 of the Commercial Code penalizes the act of subjecting or attempting to subject the other party to obligations creating a significant imbalance in the rights and obligations of the parties. Case law applies this concept with increasing rigor.

How to avoid the risk of clauses creating a significant imbalance?

Several principles guide the drafting of balanced clauses:

Common mistakes and incurred penalties

Frequent mistakes

Mistake 1

Copying and pasting a competitor's GTC

Legal risk

Infringement and unsuitability of the clauses to your actual business

Possible penalty

Damages and unenforceability of the GTC

Mistake 2

Absence of an acceptance box when ordering

Legal risk

Unenforceability of the GTC against the buyer

Possible penalty

Cancellation of clauses before the judge

Mistake 3

Mixing GTU and GDPR policy

Legal risk

Insufficient information to the consumer on data processing

Possible penalty

CNIL penalty and administrative fine

Mistake 4

Unilateral modification clause without notice

Legal risk

Unfair clause in a B2C relationship

Possible penalty

Clause deemed unwritten and damages

Mistake 5

Absence of information on withdrawal

Legal risk

Violation of Article L221-5 of the Consumer Code

Possible penalty

Extension of the withdrawal period to 12 months

Mistake 6

Non-communication of the GTC to the professional

Legal risk

Violation of Article L441-1 of the Commercial Code

Possible penalty

Administrative fine up to €75,000

Mistake 7

Incomplete LCEN legal notices

Legal risk

Violation of Article 19 of the LCEN

Possible penalty

Criminal fine up to €75,000

What are the risks in the event of non-compliant GTU/GTC?

What administrative and civil penalties can be incurred?

The penalties vary depending on the nature of the breach and the status of the co-contractor. In the B2B relationship, the failure to communicate the GTC opens an administrative procedure before the DGCCRF that may result in an administrative fine of €75,000 for a legal entity.

In the B2C relationship, several regimes may apply cumulatively:

• Unfair clauses are deemed unwritten (Article L241-1 of the Consumer Code), which means that the contract continues to produce its effects for the remainder but that the disputed clause is retroactively annulled
• The failure to provide pre-contractual information is punishable by an administrative fine up to €15,000 for a natural person and €75,000 for a legal entity (Article L131-1 of the Consumer Code)
• The failure to provide information on the right of withdrawal extends the withdrawal period to 12 months instead of 14 days (Article L221-20 of the Consumer Code), with a direct impact on revenue
• The CNIL may impose penalties of up to 4% of worldwide annual revenue or 20 million euros in the event of a serious GDPR breach

What impact in the event of a dispute with a customer or a partner?

Beyond administrative penalties, poorly drafted GTU and GTC expose one to civil litigation whose practical consequences are sometimes heavier than the fine itself.

Concrete example: a B2B SaaS publisher had inserted into its GTC a liability limitation clause capping its damages at 1,000 euros, regardless of the cause of the loss. Following an outage that caused the loss of critical data at a professional client, the Paris Commercial Court found this clause manifestly imbalanced and set it aside, ordering the publisher to fully compensate the harm.

Another example: a marketplace had designed its GTU to be able to unilaterally suspend a seller's account without reason and without notice. Several sellers who had been wrongly suspended obtained in court not only reinstatement but also damages for the loss of revenue during the suspension, the clause being deemed manifestly unfair.

These examples show that an unenforceable or void clause amounts in practice to having no contractual protection, which is often worse than the plain absence of a clause, because it lulls the company into a false sense of security.

How does the firm Mirabile Avocat secure your GTU and GTC?

The Mirabile Avocat Firm, located in Paris and specializing in digital law, commercial law and distribution law, provides daily support to VSEs, SMEs, startups and e-commerce players in the contractual securing of their digital business.

Our involvement covers the entire life cycle of the general terms:

• Audit of the business model and contractual flows to identify the necessary documents (GTU, GTC, GPC, GDPR policy, LCEN legal notices, cookie policy)
• Bespoke drafting of each document according to the business sector, the target audience, the B2B or B2C specificities, and the applicable sector obligations
• GDPR compliance of data collection and drafting of the related notices in conjunction with an internal or outsourced DPO
• Verification of the enforceability of the general terms through the analysis of the user journey, the acceptance process and the procedures for archiving the proof
• Annual review and updating of the documents according to legislative, regulatory and case-law developments
• Litigation defense in the event of a dispute with a customer, a commercial partner or facing an investigation by the DGCCRF or the CNIL

Our approach is intended to be educational and operational: we explain to each director the implications of the chosen clauses, train the internal teams in compliance with best practices, and offer concrete tools to manage day-to-day contractual matters.

Recent case study: a B2B SaaS platform publisher sought our involvement to overhaul all of its contractual documents. The audit revealed that the GTC in force were unsuitable (a model copied and pasted from a B2C e-commerce site), that the GDPR notices were absent, and that the liability limitation clause would probably be set aside in the event of a dispute. The complete overhaul made it possible to significantly reduce the legal risk and to structure a contractual policy aligned with the standards of the sector.

Legal disclaimer

This article has a general informational and educational purpose. It does not constitute personalized legal advice and cannot replace a detailed opinion from a lawyer on a particular situation. For any question relating to the drafting, audit or securing of your GTU and GTC, the Mirabile Avocat Firm is at your disposal for a dedicated discussion.