Comparing e-commerce platform terms in mainland China and Hong Kong

In mainland China, major circumstances where standard terms would be regarded as void or unenforceable

In Hong Kong, major circumstances where standard terms would be regarded as void or unenforceable

Standard terms applicable to all kinds of contracts

• Terms excluding one party’s liability for personal injury or property damage caused intentionally or by gross negligence;
• Terms made by one party that exclude the counterparty’s major rights; and
• Terms made by one party that unreasonably exempt or reduce its own responsibilities, increase the counterparty’s responsibilities, or limit the counterparty’s major rights.

• Terms made to exclude or limit the liability for death or personal injury resulting from negligence;
• Terms made to unreasonably exclude or limit liability for other loss or damage resulting from negligence;

Standard terms specifically targeting e-commerce operators that would be regarded as void

• Terms stipulating that the contract is not concluded even after consumers have made payments;
• Terms stipulating that acceptance of delivery of goods by a consumer is to be regarded as deemed confirmation by the consumer of such goods being in conformity with the agreed quality;
• Terms stipulating that all legal responsibilities that should be borne by the e-commerce platform operator shall instead be borne by the merchant/operator within the platform;
• Terms stipulating that the e-commerce operator has the right of unilateral interpretation or final interpretation;
• Terms made to exclude or limit consumers’ right to complain, report, request mediation, apply for arbitration and commence a claim in accordance with the law; and
• Other terms unfair and unreasonable to consumers, such as those excluding or limiting consumer rights, reducing or exempting e-commerce operators’ responsibilities, or increasing consumers’ responsibilities.

• In contracts with consumers, terms made to exclude or limit liability for breach of seller’s obligations arising from the Sale of Goods Ordinance, such as in relation to the quality, fitness, description and ownership of the goods;
• In contracts with consumers, terms made to unreasonably exclude or limit liability in respect of breach of contract, or render no performance in respect of the whole or any part of the contractual obligations, or render a contractual performance substantially different from what was reasonably expected;
• Terms made to unreasonably require consumers to indemnify another person in respect of liability that may be incurred for negligence or breach of contract; and
• A contract (or any part of it) with consumers that the court finds to have been unconscionable at the time of conclusion.