What are the Terms of Use? ?

1. What is the terms of use

Terms of use refers to a form of contract called "standard transaction" that allows a specific party to enter into a contract with an unspecified number of other parties with uniform content when it is reasonable for both parties. It is the one that describes the contents of the contract. Although it had been widely used in practice, it was officially recognized by law in the revised Civil Code that came into effect on April 1, 2020.
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*Article 548-2, Paragraph 1 of the Civil Code (references are listed at the end)

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2. Conditions for establishing the Terms of Use

There are several conditions in order for a transaction to be concluded according to the Terms of Use.
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(1) When you have agreed to use the Terms of Use as the content of the contract or
​(2) When you indicate to the other party that the terms of use constitute the content of the contract

By any of the above methods, even if the other party does not agree to all the contents of the terms of use, it can be regarded as the contents of the contract.

*Civil Code Article 548-2, Paragraph 1, Item 1, Item 2 (references are listed at the end)

​However, as will be explained later "Invalid Clauses", in the case of a transaction using the terms of use, it will be a valid contract even if the other party does not agree to all the clauses, and therefore, it is necessary to pay attention to the fact that there are clauses that become invalid in certain cases to protect the other party of the contract, .

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3. Changes to Terms of Use

When changing the content of the terms of use after concluding a contract with the other party, the service provider can unilaterally change the content without obtaining the consent of the other party by satisfying the following conditions. . ​

(1) When changes to the content benefit the other party Changes to the content that are advantageous to the other party to the contract may be made unilaterally without obtaining the consent of the other party.

Ex.
Reduce service fees. Reduce opponent's prohibitions. Reduce the amount of damages for the other party. etc.

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(2) The change in the content does not contravene the purpose of the contract, the necessity of the change, the appropriateness of the content after the change, whether or not there is a clause regarding possibility of changing the content in the terms of use, its content, and reasonableness in light of the circumstances of the change
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in short,
・The change must be within the scope of the purpose of the contract.
・Necessity of change
・The content after the change is appropriate
・It is stipulated in the terms of use that the contents may be changed, etc.
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Considering the above comprehensively, it is a condition that it is reasonable.
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​ *Article 548-4, Paragraph 1 of the Civil Code (references are listed at the end)

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4. Invalid Clauses

When concluding a contract using the terms of use, the contract will be concluded even if the other party of the contract has not confirmed and accepted all the terms. Therefore, as mentioned above, in order to protect the other party of the contract, any provision of the terms of use that unilaterally harms the interests of the other party is invalid.

Ex.
・Clause that the service provider will not be liable for damages under any circumstances (even if the service provider is at fault)
・Clause that you cannot cancel without paying a penalty that is much higher than the service fee
​etc.

*Article 548-2, Paragraph 2 of the Civil Code (the content of the reference article is listed at the end)

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References:
 

(Agreement on standard terms and conditions)
Article 548-2 Standardized Transactions (Transactions conducted by a specific person with many and unspecified persons as counterparties, and it is reasonable for both parties that the whole or part of the content of the transaction is uniform) The same shall apply hereinafter) (hereinafter referred to as "standard transaction agreement"), in the following cases, the standard terms and conditions (in standard transactions, the content of the contract and shall be deemed to have agreed to the individual clauses of (the entirety of the clauses prepared by the specific person for the purpose of doing so. The same applies hereinafter.)
When an agreement has been reached to the effect that the content of the contract shall be a fixed type contract.
(ii) When the person who prepared the standard terms and conditions (hereinafter referred to as the "person who prepared the standard terms and conditions") had indicated to the other party in advance that the standard terms and conditions were to be the content of the contract.
2. Notwithstanding the provisions of the preceding paragraph, any clause that restricts the rights of the other party or aggravates the obligations of the other party among the provisions of the same paragraph shall If it is found to unilaterally harm the interests of the other party in violation of the basic principles stipulated in Article 1, Paragraph 2, it shall be deemed that no agreement has been reached.

(Changes to Standard Terms and Conditions)
Article 548-4 In any of the following cases, a person who prepares standard terms and conditions shall be deemed to have agreed to the terms of the revised standard terms and conditions by changing the standard terms and conditions, and shall You can change the contents of the contract without agreeing with
When the modification of a fixed form conforms to the general interests of the other party.
(ii) whether the modification of the standard terms and conditions does not conflict with the purpose of the contract, the necessity of the modification, the appropriateness of the contents after the modification, and whether or not there is a provision to the effect that the standard terms and conditions may be modified pursuant to the provisions of this Article; When it is reasonable in light of the content and other circumstances related to the change.
2. When the standard terms and conditions are to be changed pursuant to the provisions of the preceding paragraph, the person who prepares the standard terms and conditions shall specify the effective time of the change, and post the fact that the standard terms and conditions will be changed, the content of the changed standard terms and the effective date of the change on the Internet. shall be made known by the use of or other appropriate means.

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