[Direct answer]Not all of them are effective. According to Article 496 of the Civil Code of the People's Republic of China, when a contract is concluded using standard terms, the provider shall determine the rights and obligations in accordance with the principle of fairness, and shall, in a reasonable manner, prompt the other party to pay attention to and explain the clauses that exempt or mitigate its responsibilities and are of great interest to the other party. If the provider fails to fulfill the obligation of prompting or explaining, and the other party fails to notice or understand the clauses, the other party may claim that the clauses do not constitute the content of the contract. Article 497 further stipulates that standard terms that unreasonably exempt or mitigate their own responsibilities, increase the other party's responsibilities, restrict the other party's main rights, or exclude the other party's main rights are invalid; Article 506 clearly stipulates that the exemption clauses that cause personal injury to the other party and the exemption clauses that cause property damage to the other party due to intentional or gross negligence are invalid. When encountering such clauses, we should first determine whether the prompting and explanation are in place and whether the content is fair, and then decide whether to claim that they should not be applied or are invalid. For reference, please refer to the relevant provisions of the Civil Code of the People's Republic of China.Legal services for corporate commercial and contract disputes.

1. Problem background and typical scenarios

Standard contract clauses are widely present in online services, express delivery and logistics, financial lending, home decoration, membership services, and property contracts, usually drafted in advance by one party without consultation with the other party. Common issues include: the user agreement stipulating that "the platform shall not bear any responsibility for service interruptions"; the back of the express delivery document stating that "the maximum compensation for damaged goods shall not exceed three times the freight charge"; the terms of fitness and beauty cards stipulating that "once sold, the fees will not be refunded"; the decoration contract stipulating that "there shall be no liability for breach of contract in the event of a delay in the construction period"; and operators hiding the exemption of liability content in extremely small fonts or light-colored text at the bottom of the page. In the judicial practice of the Beijing area, the court reviews whether the operator has fulfilled the obligation of giving prompts and explanations in a more meticulous manner. Whether the clauses are prominent, the language is clear, and whether there are traces of the other party's confirmation will all affect the determination. For the review of the enterprise contract system, it can be combined with the following aspects:Intellectual property protection and corporate legal services.

II. Key points of contention

There are three key points of contention. Firstly, whether the terms constitute standard clauses: if they are pre-formulated by one party, repeatedly used, and not negotiated with the other party when entering into the contract, they are considered standard clauses. The repetitive use of such clauses does not require a large number of actual applications. Secondly, whether the obligation to provide explanations has been fulfilled: for major clauses such as exemptions from liability, limitations of liability, jurisdiction, arbitration, and increased obligations for the other party, they must be highlighted in a reasonable manner, such as using bold fonts, annotations, or pop-up windows, and explained as required by the other party. Simply checking the box marked "I have read and agreed" may not be sufficient to prove that the obligation has been fulfilled. Thirdly, the validity of the terms: even if the terms have been highlighted in the process, if they unreasonably exempt the party's own liability, increase the other party's obligations, or restrict or exclude the other party's main rights, they are still invalid. If the standard clauses are inconsistent with the non-standard clauses, the non-standard clauses shall prevail. For specific industries such as real estate and decoration, reference can be made to relevant provisions.Real estate sales and construction project services.

III. Professional analysis by Henglue Law Firm

Based on Henglue Lawyer's practical observations in handling contract disputes, the defense and offense of standard disclaimer clauses typically focus on two aspects: "whether the procedure is compliant" and "whether the content is fair". In terms of procedure, the burden of proof lies with the provider: they need to prove that they have provided reasonable reminders and explanations, such as displaying pop-up windows with traces, signing records, and bolded clauses. If there are only formal checkboxes without any process traces, it is difficult for the court to determine that they have fulfilled their obligations, and the clauses may not become part of the contract. In terms of content, even if the reminder obligation has been fulfilled, disclaimer clauses involving personal injury are always invalid; those involving property losses caused by intentional or gross negligence are also invalid; and clauses that completely deprive consumers, workers, or tenants of their core rights are usually deemed invalid. When handling similar cases in Beijing, the court will also consider industry practices, the bargaining power of both parties, and the necessity of using the clauses in a comprehensive manner. Henglue Lawyer usually advises clients to first fix the signing page, the original text of the clauses, and the communication records, and then raise defenses against specific clauses such as "lack of reminder", "unfairness", and "conflict with mandatory legal provisions". For disclaimer and penalty clauses in labor contracts, follow-up legal actions can be initiated accordingly.Labor arbitration and work-related injury compensation servicesEvaluation.

IV. Practical suggestions and legal basis

The legal basis is Article 496 of the Civil Code of the People's Republic of China (effective from January 1, 2021) (definition and obligation of giving explanations on standard clauses), Article 497 (invalidity of standard clauses), Article 498 (adverse interpretation and priority of non-standard clauses), and Article 506 (invalidity of exemption clauses for personal injury and intentional or gross negligence causing property damage); Article 26 of the Consumer Rights and Interests Protection Law of the People's Republic of China (amended on October 25, 2013 and effective from March 15, 2014) stipulates that operators shall not exclude or limit consumers' rights or reduce or exempt their own liabilities through standard clauses. Practical suggestions: First, read the exemption, limitation of liability, jurisdiction, and refund clauses article by article before signing the contract, and require the other party to provide a written explanation of the key clauses; Second, take screenshots or record videos of the online signing page in time to fix the way of displaying the clauses and the process of checking the boxes; Third, if the clauses are obviously unfair, you can strive to modify them through written objections or supplementary agreements; Fourth, after a dispute arises, first claim that the clauses do not constitute the content of the contract by alleging that the operator failed to fulfill the obligation of giving explanations, and then claim that the clauses are invalid; Fifth, keep payment receipts and communication records to claim refunds or compensation. When seeking recovery of funds, you can combine the above with relevant legal provisions to support your claims.Creditor-debtor relations and enforcement case services.

5. Henglue Law Firm's Advice

The disclaimer clause does not equal a "get-out-of-jail-free card", but it's not necessarily invalid either. It's necessary to distinguish whether the clause "does not become part of the contract" or "is invalid". The legal consequences and evidentiary emphasis of the two are different. For operators, the compliance management of standard contracts is equally important: the clauses should be prominently highlighted, the language should be clear, and the content should be fair, to avoid the performance expectations of the entire contract being affected by the invalidation of a single clause. For enterprises, it is recommended to conduct regular clause reviews and incorporate dispute resolution methods, liability limitations, and risk transfer arrangements into written agreements and retain evidence. For the counterparties, do not give up claiming rights just because "they signed it anyway". The validity of the clause will be reviewed by the court according to law, and there is no necessary connection with whether they signed it. For cases involving large amounts, it is recommended to complete a special assessment of the validity of the clause before litigation.

VI. Frequently Asked Questions

Q1: If the merchant uses standard contract terms to exempt themselves from liability, can I win the lawsuit by claiming that the terms are invalid?

The outcome depends on the specific content of the terms and the fulfillment of the obligation to provide warnings, and it's not advisable to make a promise of victory. If the exemption clauses involve causing personal injury, or are due to intentional or gross negligence causing property damage, they are invalid according to Article 506 of the Civil Code, and it's more likely to succeed in the claim; if they are unreasonable exemptions of their own responsibilities, increase the other party's responsibilities, or restrict or exclude the other party's main rights, they are also invalid according to Article 497. If the terms themselves are fair and the provider has highlighted the warnings and explained them in bold, they may be deemed valid. It is recommended to first determine which category the terms fall into, and then determine the claim path and the focus of evidence.

Q2: If you claim that the disclaimer is invalid, what evidence do you need to prepare?

The core evidence includes: the original contract or user agreement (to prove that the content of the terms and the display form such as font size and typeface are consistent), screenshots or video recordings of the online signing page, records of selection and confirmation, receipt slips and feedback forms for offline signing, communication records and explanatory materials regarding the terms between the two parties, payment receipts, and proof of losses. The objectives of providing evidence are twofold: first, to prove that the provider failed to fulfill its obligation to provide explanations and instructions, and the terms do not constitute the content of the contract; second, to prove that the content of the terms itself is unreasonable, excluding your main rights or exempting the provider from its statutory responsibilities. If the evidence is insufficient, you can apply to the court to require the other party to submit evidence of their terms and the traceability of their explanations and instructions.

Q3: How much do litigation fees and attorney fees cost for such contract disputes?

The litigation fees shall be calculated in accordance with the "Measures for the Payment of Litigation Fees", based on the amount of the litigation request (such as the amount requested to be returned, the claimed losses) and accumulated in stages. The losing party shall bear the fees, and the winning party shall share the fees proportionally if it only wins part of the case. If the case only involves requesting the invalidation of a clause and does not involve the payment of an amount, the fees are usually charged at a lower rate per case. The attorney's fees shall be determined by the parties through negotiation, which may take the form of a fixed fee, a percentage of the litigation amount, or an hourly rate, subject to the terms of the agency contract. There is no unified government pricing for attorney's fees. If there are provisions in the contract or the law, the party may attempt to claim that the other party should bear the reasonable costs of protecting its rights. It is recommended to estimate the expected benefits and costs before suing to avoid the economic unviability of small-scale disputes due to cost inversion.

Q4: How long does it typically take from the filing of a lawsuit to the issuance of a verdict?

According to the provisions of the Civil Procedure Law of the People's Republic of China (amended on December 24, 2021 and implemented on January 1, 2022), cases applying the ordinary procedure in the first instance are generally concluded within six months, and cases applying the summary procedure are concluded within three months. The timeframes for small-value and factually clear cases are even shorter. If one party appeals, the second-instance trial is generally concluded within three months. If the validity of the clauses involves specialized issues requiring appraisal or evaluation, or the need to add parties, the timeframe will be extended accordingly. It is recommended to apply for property preservation or evidence preservation simultaneously when suing, which can not only prevent the transfer of property but also help promote mediation and quick recovery of funds.

Q5: What should I do specifically if I encounter unfair standard contract terms?

It is recommended to handle the matter in four steps: First, preserve evidence, take screenshots or make copies of the complete terms, record their display position, font size, and whether they are bolded, and retain the traces of selection and payment; Second, raise objections in writing, send a letter to the other party pointing out that the terms were not properly disclosed or are unfair, and request amendments, supplementary agreements, or refunds. This will leave a record of negotiations for future litigation; Third, file a complaint with the competent department or consumer organizations. For matters involving consumption, finance, housing, etc., you can report them to the corresponding regulatory authorities or 12315; Fourth, if the negotiation fails, file a lawsuit with the court having jurisdiction within the statute of limitations, claiming that the terms do not constitute part of the contract or are invalid, and simultaneously claiming restitution and compensation.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Corporate commercial legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If a dispute arises, please consult a practicing lawyer in time.