{"id":3509,"date":"2026-10-07T07:52:45","date_gmt":"2026-10-07T07:52:45","guid":{"rendered":"https:\/\/sawaryn.com\/?p=3509"},"modified":"2026-10-07T07:53:07","modified_gmt":"2026-10-07T07:53:07","slug":"polish-standard-terms-individual-agreement-conflicts","status":"publish","type":"post","link":"https:\/\/sawaryn.com\/en\/publikacje\/polish-standard-terms-individual-agreement-conflicts\/","title":{"rendered":"When Polish Standard Terms Conflict With an Individual Agreement"},"content":{"rendered":"

Your GTC state that they take precedence over the individual agreement. The Civil Code says exactly the opposite – and in a dispute, the Code will prevail. You will find out on the day your salesperson signs something no one else reads.<\/p>\n

If you operate a platform, marketplace, SaaS business with terms and conditions<\/a> and an order form, or an agency with framework terms – you use standard terms. A single document governs dozens or hundreds of relationships. That makes operational sense. The problem arises when individual agreements<\/strong> operate alongside the standard terms – and no one controls what goes into them.<\/p>\n

Art. 385 \u00a7 1 of the Civil Code (consolidated text, Journal of Laws 2025, item 1071<\/a>) states explicitly: if the agreement conflicts with the standard terms, the parties are bound by the agreement<\/strong> – not the standard terms. This provision is not limited to consumer relationships. It also applies to B2B transactions.<\/p>\n

In this article, I will explain why a clause giving precedence to the GTC does not work as its author assumes, what risks this creates, and what to do to ensure that a two-tier structure (standard terms plus an individual agreement) is consistent – both legally and operationally.<\/p>\n

Key terms you need to know<\/h2>\n

Before we continue, here are several terms used throughout this article:<\/p>\n\n\n\n\n\n\n\n\n\n\n
Term<\/th>\nMeaning<\/th>\n<\/tr>\n<\/thead>\n
Standard terms (GTC)<\/strong><\/td>\nA document prepared unilaterally by one party that governs the terms of cooperation with multiple counterparties – e.g. terms and conditions, general terms and conditions, or general terms of delivery<\/td>\n<\/tr>\n
Individual agreement<\/strong><\/td>\nA document negotiated and signed with a specific counterparty – e.g. an order, specific agreement, or order form<\/td>\n<\/tr>\n
Conflict clause<\/strong><\/td>\nA provision specifying which document takes precedence in the event of a conflict<\/td>\n<\/tr>\n
Art. 385 \u00a7 1 of the Civil Code<\/strong><\/td>\nA provision of the Civil Code stipulating that, in the event of a conflict between standard terms and an individual agreement, the agreement prevails<\/td>\n<\/tr>\n
Art. 384 of the Civil Code<\/strong><\/td>\nA provision governing when standard terms become binding – in B2B transactions, it is sufficient to enable the other party to easily review their content<\/td>\n<\/tr>\n
Fields of exploitation<\/strong><\/td>\nWays in which a work may be used, which must be expressly listed in the licence (Art. 41(2) of the Copyright Act)<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Why a clause giving precedence to the GTC does not work<\/h2>\n

Most standard terms contain some variation of one of these provisions: \u201cThe GTC take precedence over the specific agreement" or \u201cThe provisions of the individual agreement may not conflict with the GTC". The author of the standard terms assumes that such a provision settles the matter. It does not.<\/p>\n

The statutory conflict rule<\/h3>\n

Art. 385 \u00a7 1 of the Civil Code reverses the hierarchy intuitively created by the author of the standard terms. If the agreement conflicts with the standard terms, the parties are bound by the individual agreement<\/strong> – regardless of what the standard terms declare. The provision is mandatory in the sense that it cannot be reversed by a clause in the standard terms.<\/p>\n

A clause prohibiting provisions that conflict with the GTC from being included in an individual agreement is, at most, an obligation regarding how negotiations are to be conducted<\/strong> – not a conflict rule. In other words, breaching such a prohibition may provide grounds for a complaint against the person who signed the agreement contrary to instructions, but it will not change the outcome of a dispute over the substance of the relationship with the counterparty.<\/p>\n

What this means for your business<\/h3>\n\n\n\n\n\n\n\n\n
Scenario<\/th>\nWhat happens<\/th>\nWhich prevails<\/th>\n<\/tr>\n<\/thead>\n
The GTC provide for a fixed fee, while the individual agreement provides for commission-based remuneration<\/td>\nConflict of terms<\/td>\nThe individual agreement<\/td>\n<\/tr>\n
The GTC exclude exclusivity, while the individual agreement grants it<\/td>\nConflict of terms<\/td>\nThe individual agreement<\/td>\n<\/tr>\n
The GTC specify the payment deadline, while the individual agreement is silent<\/td>\nNo conflict – the standard terms supplement the agreement<\/td>\nThe GTC<\/td>\n<\/tr>\n
The GTC declare that they take precedence and prohibit conflicting provisions<\/td>\nA declaration, not a conflict rule<\/td>\nThe individual agreement (if a conflict exists)<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The third row of the table is the most important from the perspective of document design. The standard terms supplement the agreement in areas not governed by the individual agreement.<\/strong> As long as there is no conflict, the GTC apply. The problem arises when the negotiator signs something that deviates from the standard terms.<\/p>\n

An additional layer: ambiguities interpreted in favour of the counterparty<\/h3>\n

Art. 385 \u00a7 2 of the Civil Code requires standard terms to be drafted clearly and comprehensibly. Any ambiguities are interpreted in favour of the other party. Every inconsistency – mismatched exhibit numbering, a reference to a non-existent provision, or a blank field in a contractual penalty clause – works against the author of the document<\/strong>.<\/p>\n

A professional author of standard terms is held to a higher standard of care (Art. 355 \u00a7 2 of the Civil Code). A court will assess the drafting quality of the GTC more strictly than it would a document prepared by a non-professional.<\/p>\n

Contact us<\/a><\/p>\n

Risks arising from a defective two-tier structure<\/h2>\n

An inconsistent relationship between standard terms and individual agreements creates risks in three areas: legal, financial, and operational.<\/p>\n

Legal risk: a portfolio of exceptions instead of a standard<\/h3>\n

A negotiator signs a specific agreement containing a remuneration model more favourable to the counterparty than the one provided for in the standard terms. Three years later, in a dispute, the individual agreement prevails, even though the GTC declared that they took precedence. The company discovers this only after the relationship has been in place for years.<\/p>\n

The contract portfolio becomes a collection of individual exceptions. The operating standard exists on paper, while scaling cooperation requires each relationship to be checked manually.<\/p>\n

Financial risk: hidden price-setting provisions<\/h3>\n

Technical parameters hidden in an exhibit – thresholds for recognising an event as billable, unit conversion rates, or the definition of a billing event – are price-setting provisions. Each of these parameters directly affects the amount shown on the invoice.<\/p>\n

If one party changes a technical exhibit without an amendment, while the basis for calculating remuneration exists solely in that party\u2019s system, the other party has no way to verify whether the calculations are correct.<\/p>\n\n\n\n\n\n\n\n\n
Element<\/th>\nRisk<\/th>\nConsequence<\/th>\n<\/tr>\n<\/thead>\n
Definition of a billing event in one party\u2019s system<\/td>\nNo means of verification<\/td>\nUnderstatement of remuneration<\/td>\n<\/tr>\n
Technical thresholds in an exhibit amended unilaterally<\/td>\nHidden price change<\/td>\nDispute over invoice amounts<\/td>\n<\/tr>\n
No data dashboard for the counterparty<\/td>\nLack of transparency<\/td>\nNo basis for raising a complaint<\/td>\n<\/tr>\n
Blank field for an audit threshold<\/td>\nUnenforceable audit clause<\/td>\nNo control mechanism<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Operational risk: amending standard terms without a procedure<\/h3>\n

Art. 384\u00b9 of the Civil Code governs amendments to standard terms in an ongoing contractual relationship: the amended standard terms bind the other party if they have been delivered to that party and the party has not terminated the agreement at the next available termination date<\/strong> (consolidated text of the Civil Code, Journal of Laws 2025, item 1071<\/a>).<\/p>\n

Standard terms without their own amendment procedure either become frozen (the old version continues to govern the relationship) or expose the issuer to allegations of unilateral modification. If the only available route is a written amendment signed separately with every counterparty, a change in the law requiring an update means collecting several hundred signatures.<\/p>\n

Risks relating to licences<\/h3>\n

Distribution companies, digital content platforms, and SaaS businesses with an IP component also face specific risks:<\/p>\n\n\n\n\n\n\n\n\n
Problem<\/th>\nProvision<\/th>\nEffect<\/th>\n<\/tr>\n<\/thead>\n
Exclusivity without written form<\/td>\nArt. 67 of the Copyright Act<\/td>\nExclusivity does not arise – a contractual penalty for breaching it has no legal basis<\/td>\n<\/tr>\n
Failure to list the fields of exploitation<\/td>\nArt. 41(2) of the Copyright Act<\/td>\nThe licence covers only what is expressly listed<\/td>\n<\/tr>\n
Licence granted for more than 5 years<\/td>\nArt. 68 of the Copyright Act<\/td>\nAfter 5 years, it is treated as having been granted for an indefinite term – and may be terminated<\/td>\n<\/tr>\n
Automatic creation of a licence at a technical point in time<\/td>\nNo separate document<\/td>\nThe scope of use is insufficiently defined<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

If exclusivity is a parameter negotiated in the specific agreement, that document must satisfy the written-form requirement on pain of invalidity. A qualified electronic signature or paper document is required – an exchange of emails is not enough.<\/p>\n

How to complete the two-tier structure<\/h2>\n

The problem cannot be solved by improving the wording of the precedence clause. It requires both structural design and a process.<\/p>\n

Step 1: create a closed list of negotiable parameters<\/h3>\n

List exhaustively what the individual agreement may regulate:<\/p>\n

    \n
  1. Remuneration model and amount<\/li>\n
  2. Exclusivity (yes\/no, territory, term)<\/li>\n
  3. Distribution territory<\/li>\n
  4. Billing period<\/li>\n
  5. Contact details and responsible persons<\/li>\n<\/ol>\n

    State that the standard terms govern all matters outside this list. This reduces the potential for conflicts and makes it easier to demonstrate that a deviation in another area was not individually agreed.<\/p>\n

    Step 2: draft the conflict clause with Art. 385 \u00a7 1 of the Civil Code in mind<\/h3>\n

    Remove the clause stating that the standard terms take precedence from the GTC. Replace it with a clause that:<\/p>\n

      \n
    1. Confirms that the individual agreement takes precedence within the scope of the negotiable parameters<\/li>\n
    2. States that the GTC apply in all other respects<\/li>\n
    3. Defines an escalation procedure for cases in which a negotiator wants to go beyond the list<\/li>\n<\/ol>\n

      Step 3: implement a pre-signing review<\/h3>\n

      Every draft individual agreement should be reviewed for deviations from the standard terms. Without this step, the wording of the documents alone will not protect the company.<\/p>\n\n\n\n\n\n\n\n
      Review element<\/th>\nWho is responsible<\/th>\nWhen<\/th>\n<\/tr>\n<\/thead>\n
      Checking whether the agreement falls within the list of negotiable parameters<\/td>\nThe signatory<\/td>\nBefore sending the draft to the counterparty<\/td>\n<\/tr>\n
      Approval of deviations outside the list<\/td>\nLegal department or management board<\/td>\nBefore signing<\/td>\n<\/tr>\n
      Archiving the version of the standard terms, together with the date and evidence that they were made available<\/td>\nLegal department or operations team<\/td>\nWhenever the standard terms are amended<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

      Step 4: draft a procedure for amending the standard terms<\/h3>\n

      In the GTC, specify:<\/p>\n

        \n
      1. The method and time of delivery of the amended standard terms<\/li>\n
      2. The period for termination without adverse consequences<\/li>\n
      3. A distinction between changes required by law and business-related changes<\/li>\n
      4. How relationships already commenced before the change will be treated<\/li>\n<\/ol>\n

        Without this, every update to the GTC requires a separate amendment with every counterparty – defeating the operational purpose of standard terms.<\/p>\n

        Step 5: build a billing control package<\/h3>\n

        If the basis for calculating remuneration is generated in one party\u2019s system:<\/p>\n

          \n
        1. Define the billing event precisely and in a measurable manner<\/li>\n
        2. Place technical thresholds in an exhibit – with a procedure for changing them that requires both parties\u2019 consent<\/li>\n
        3. Provide the counterparty with continuous access to a data dashboard<\/li>\n
        4. Set a deadline for objections to the billing report – without suspending payment of undisputed amounts<\/li>\n
        5. Provide for a correction mechanism in the following billing period<\/li>\n
        6. Include an audit right under which the payer bears the cost if the understatement exceeds an agreed threshold<\/li>\n<\/ol>\n

          The understatement threshold, calculation method, and scope of audit costs must be contractually specified – the Copyright Act (Journal of Laws 2024, item 1254)<\/a> does not establish a statutory percentage standard.<\/p>\n

          Step 6: organise the licensing layer<\/h3>\n
            \n
          1. List the fields of exploitation expressly – separately for the main content, promotional excerpt, and accompanying materials<\/li>\n
          2. Determine whether the remuneration covers all amounts due for all elements<\/li>\n
          3. Ensure that the document establishing exclusivity is in writing<\/li>\n
          4. Set the retention period for source billing data so that it is longer than the limitation period for remuneration claims (for typical B2B settlements – at least 3 years for each amount due, in accordance with Art. 118 of the Civil Code; consolidated text of the Civil Code<\/a>)<\/li>\n<\/ol>\n

            Additional areas to review<\/h2>\n

            In addition to the core two-tier structure, check the following:<\/p>\n

            Payment deadlines and self-billing<\/h3>\n

            If your counterparty is an SME and your company meets the criteria for a large enterprise, the maximum contractual payment period is 60 days<\/strong> from delivery of the invoice (Art. 7(2a) of the Act on Counteracting Excessive Delays in Commercial Transactions, Journal of Laws 2023, item 711<\/a>). A longer period is replaced by the statutory deadline.<\/p>\n

            For self-billing (Art. 106d of the VAT Act, Journal of Laws 2025, item 775<\/a>), describe the invoice approval procedure: the delivery method, deadline for objections, and effect of failing to object. Tax authorities accept the absence of an objection within the contractual deadline as approval (biznes.gov.pl<\/a>).<\/p>\n

            Information obligations towards authors<\/h3>\n

            Art. 47\u00b9 of the Copyright Act (Act of 26 July 2024, Journal of Laws 2024, item 1254<\/a>), implementing Art. 19 of Directive 2019\/790, grants authors the right to receive regular information on revenue generated from the use of their works – at least once a year. The obligation rests with the author\u2019s direct counterparty, but in the case of sublicensing, it also extends to downstream licensees.<\/p>\n

            Contractually shifting the cost of handling information requests to the counterparty does not relieve the entity subject to the statutory obligation<\/strong> of that obligation.<\/p>\n

            Classification of the platform under the P2B Regulation and DSA<\/h3>\n

            If your platform enables businesses to offer goods or services to consumers, it may be subject to the P2B Regulation (EU) 2019\/1150<\/a>. In Poland, a breach of the P2B Regulation is classified as an act of unfair competition (Art. 17h of the Act on Combating Unfair Competition<\/a>) – claims may be pursued exclusively through civil proceedings.<\/p>\n

            Under the DSA (Regulation 2022\/2065), the maximum fines are specified directly in the Regulation: up to 6% of annual worldwide turnover.<\/p>\n

            Classification depends on the actual model: who makes the offer, who enters into the agreement with the consumer, and on whose account and at whose risk the transaction takes place. A platform that purchases goods and sells them on its own account is less likely to qualify as a provider of online intermediation services under the P2B Regulation.<\/p>\n

            Contractual penalties and liability caps<\/h3>\n\n\n\n\n\n\n\n\n
            Issue<\/th>\nRule<\/th>\nWhat to check<\/th>\n<\/tr>\n<\/thead>\n
            Contractual penalty for a monetary obligation<\/td>\nNot permitted (Art. 483 of the Civil Code)<\/td>\nWhether the penalty secures non-monetary obligations only<\/td>\n<\/tr>\n
            Grossly excessive contractual penalty<\/td>\nSubject to judicial reduction (Art. 484 \u00a7 2 of the Civil Code)<\/td>\nWhether the definition of a breach makes it possible to calculate how many times the penalty applies<\/td>\n<\/tr>\n
            Exclusion of liability for wilful misconduct<\/td>\nInvalid under Art. 473 \u00a7 2 of the Civil Code<\/td>\nWhether the liability cap excludes wilful misconduct from the limitation<\/td>\n<\/tr>\n
            Symmetrical cap where exposure is asymmetrical<\/td>\nIllusory equality<\/td>\nWhether the cap reflects each party\u2019s actual exposure<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

            How we can help<\/h2>\n

            Correcting a few clauses in the standard terms is not enough. The problem lies in the relationship between the documents and the process for signing them.<\/p>\n

            We offer audits of two-tier structures (standard terms plus an individual agreement) in three packages:<\/p>\n

            Operational minimum<\/strong> – a conflict clause compliant with Art. 385 \u00a7 1 of the Civil Code, a closed list of negotiable parameters, and a procedure for amending the standard terms in an ongoing contractual relationship.<\/p>\n

            Solid foundation<\/strong> – additionally, the licensing layer (fields of exploitation, form required for exclusivity), a billing control mechanism (definition of a billing event, dashboard, deadline for complaints, correction, audit), liability caps, and contractual penalties.<\/p>\n

            Comprehensive protection<\/strong> – additionally, classification of the platform under the P2B Regulation\/DSA, a content removal procedure with an appeal process, allocation of information obligations towards authors, and implementation of a pre-signing review process within the sales team.<\/p>\n

            The cost of correcting your GTC now is many times lower than the cost of a dispute over a single conflict clause – especially where the dispute concerns the remuneration model for the previous three years.<\/p>\n

            Contact us<\/a><\/p>\n

            Standard terms work if you complete the structure<\/h2>\n

            Using GTC makes sense. They allow you to manage dozens of counterparties with a single document, standardise terms, and scale cooperation. There is one condition: the structure must be complete.<\/p>\n

            Three things determine the effectiveness of standard terms:<\/p>\n

              \n
            1. A closed list of negotiable parameters<\/strong> – limits the potential for conflicts between the GTC and the individual agreement<\/li>\n
            2. Pre-signing review<\/strong> – every draft individual agreement is reviewed for deviations from the standard terms<\/li>\n
            3. A procedure for amending the standard terms<\/strong> – allows the GTC to be updated without collecting amendments from every counterparty<\/li>\n<\/ol>\n

              If you want to check whether your two-tier structure is consistent, contact us<\/a>. We will review the standard terms, your portfolio of individual agreements, and the process for signing them. We will identify what needs to be corrected and in what order.<\/p>\n

              Frequently asked questions<\/h2>\n

              Our GTC state that the standard terms take precedence over the specific agreement. Does this achieve anything?<\/strong>
              \nNot as a conflict rule. Art. 385 \u00a7 1 of the Civil Code stipulates that if the agreement conflicts with the standard terms, the parties are bound by the individual agreement. A clause giving precedence to the GTC may, at most, constitute an obligation regarding how negotiations are conducted, but it will not reverse the agreement\u2019s statutory priority. Instead of declaring that the GTC take precedence, create a closed list of parameters that the individual agreement may regulate.<\/p>\n

              Can I amend the GTC unilaterally during the business relationship?<\/strong>
              \nArt. 384\u00b9 of the Civil Code permits standard terms to be amended in an ongoing contractual relationship, but subject to certain conditions: the amended standard terms must be delivered to the counterparty, and the counterparty must have the option to terminate the agreement at the next available termination date. If your standard terms do not contain an amendment procedure, every update requires a separate amendment with every counterparty.<\/p>\n

              How can I prove three years from now that the counterparty had access to a specific version of the standard terms?<\/strong>
              \nArchive evidence that each version was made available: the date, channel, recipient, and file hash. Introduce version control for the GTC, including a version number and date. This is the only way to demonstrate compliance with Art. 384 of the Civil Code in a dispute that arises years later.<\/p>\n

              Is an electronic signature on the specific agreement sufficient if we provide for exclusivity?<\/strong>
              \nAn exclusive licence must be made in writing on pain of invalidity (Art. 67 of the Copyright Act). The written-form requirement is satisfied by a qualified electronic signature. A standard electronic signature or an exchange of emails does not meet this requirement – exclusivity will not be validly established.<\/p>\n

              Who is responsible for providing authors with information about revenue – us or our partner?<\/strong>
              \nArt. 47\u00b9 of the Copyright Act (implementing Art. 19 of Directive 2019\/790) imposes the information obligation on the author\u2019s direct counterparty and, in the case of sublicensing, also on downstream licensees. Contractually shifting the cost of handling requests does not relieve an entity of its statutory obligation. Make sure that the party subject to the obligation receives the data needed to comply with it.<\/p>\n

              Will a contractual penalty for breaching exclusivity be enforceable if the definition of the breach is descriptive?<\/strong>
              \nA contractual penalty may secure non-monetary obligations only (Art. 483 of the Civil Code) and may be reduced by a court if it is grossly excessive (Art. 484 \u00a7 2 of the Civil Code). If the definition of a breach does not make it possible to calculate how many times the penalty applies, its enforceability becomes questionable. Furthermore, if exclusivity was not validly established because the written-form requirement was not met, a contractual penalty for breaching it has no legal basis.<\/p>\n","protected":false},"excerpt":{"rendered":"

              Learn why an individual agreement prevails over conflicting GTC under Polish law, and how pre-signing reviews and amendment procedures reduce contract risk.<\/p>\n","protected":false},"author":13,"featured_media":3445,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"","sip_alt_url":"","sip_en_pl_url":"","sip_pair_uuid":"c7e03b04-f24b-450b-8785-e990e1a0d886","sip_pair_state":"verified"},"categories":[],"tags":[1535,1538,1552,1540,1539],"specialization":[1214],"practice_area":[],"class_list":["post-3509","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-contractual-penalties","tag-copyright-law","tag-dsa-en","tag-internal-procedure","tag-license","specialization-contract-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3509","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/users\/13"}],"replies":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/comments?post=3509"}],"version-history":[{"count":2,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3509\/revisions"}],"predecessor-version":[{"id":3512,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3509\/revisions\/3512"}],"wp:attachment":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/media?parent=3509"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/categories?post=3509"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/tags?post=3509"},{"taxonomy":"specialization","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/specialization?post=3509"},{"taxonomy":"practice_area","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/practice_area?post=3509"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}