Calculating long-term IT service contracts (B2B and B2C) appropriately and correctly anticipating rising costs is very difficult in practice. This applies to software rental contracts, maintenance and support contracts as well as to cloud computing contracts and contracts for long-term support for large projects. There is therefore a clear interest in minimizing one’s own risks by increasing costs. With the help of a price adjustment clause, you can unilaterally increase the price of your service under certain circumstances. However, so that this instrument is not overused, there are certain requirements for your price adjustment clause. In the following, you will find out how you can effectively agree your price adjustment clauses, and you will receive a legally correct price adjustment clause sample at hand.
Two legal sources come into play with price adjustment clauses:
That Preisklauselgesetz (PreisKlG)
The case law on general terms and conditions law (especially the transparency and equivalence requirement), provided that your price adjustment clause is part of your general terms and conditions.
If your price adjustment clause does not meet the requirements it contains, you will not be able to enforce your price increase – and you may be left with prices that are too low. In contrast to inadmissible general terms and conditions clauses, the Price Clause Act does not even allow you to enter into an individual legal agreement. Price adjustment clauses that do not meet the requirements of the Price Clause Act are never effective.
The principle of the Price Clause Act is that the price of a product or service may not be automatically linked to the price of another product or service, unless the product or service is “comparable” (see § 1 Abs. 1). This means that you can only determine the price of a service A from the price of a service B if A and B are sufficiently similar to be able to be compared. Comparability is not clearly defined – but the principle is probably interpreted rather strictly. For example, the OLG Naumburg sees in this judgment of December 13, 2012 (Az .: 2 U 14/12) does not even list piped natural gas and light heating oil as comparable products.
This principle also applies to IT contracts. Therefore, for example, you may not automatically add the price for IT support to the Consumer price index (VPI) of the Federal Statistical Office – because that would violate the Price Clause Act (unless an exception from §§ 2 ff. PreisKlG applies). The reason is that your IT support and the “shopping cart” of the consumer price index cannot be compared. However, if there is an index that is measured against comparable services (which must be checked in each individual case), then your price adjustment clause may apply.
Basically, two products or services must be comparable so that you can automatically link their prices to one another. However, there are two exceptions to this, which allow you to couple two incomparable services in terms of price:
Clause types, which are in Section 1 (2) PreisKlG are intended as exceptions – for example, performance reservation clauses, where the setting of a new price is at your discretion.
If your price adjustment clause is not one of the exceptions in Section 1 (2) PreisKlG, additional exceptions can be found in Sections 2 ff. PreisKlG. For example, allowed § 6 PreisKlG Price adjustment clauses of local companies in contracts with non-resident companies (e.g. from the USA).
If you have a performance reservation clause in your IT contract accordingly Section 1 (2) No. 1 PreisKlG use, you may set a new price on an equity basis. So this is not an automatic price adjustment, which is why your clause is generally permissible. If you want to agree on this clause as a standard – i.e. it is part of your terms and conditions – you must also observe the principles of terms and conditions law:
The clause may only enable you to compensate for increased costs, but not additional profit. So there has to be a fixed relationship between your performance and what you get in return. For example, the clause may not entitle you to increase the maintenance price of your software at your reasonable discretion just because you yourself increased the purchase price of the software.
Netting must be provided for in your clause. This means that you have to offset increased and decreased costs. In addition, a price reduction must be provided if the costs fall overall – otherwise the clause would put your contractual partner at an unreasonable disadvantage. Of course, the same deadline must apply to all price adjustments.
Your contractual partner must be able to roughly identify what is in store and which factors are included in the calculation (e.g. the purchase price of the software). The exact design can differ from clause to clause. For example, price retention clauses, in which you can determine the price increase at your reasonable discretion, do not require full disclosure, but require a justification for the price adjustment. So you need to explain what factors have changed and what is the impact on the total price.
Are you wondering whether your price adjustment clause has been concluded in a legally secure manner or whether you should improve it again? With the enclosed sample price adjustment clause, you can be sure that your price adjustment clauses are legally correct. (bw)